QUESTIONING THE LEGALITY of tactics used by New York Mayor Michael Bloomberg to sue gun dealers, a federal judge in Atlanta has allowed a defamation suit by a Smyrna gun shop against Bloomberg and other New York City officials to go forward.

Senior U.S. District Judge J. Owen Forrester rejected arguments by New York officials to dismiss the suit brought by Adventure Outdoors Inc. — one of 27 shops, eight of them in Georgia, facing Bloomberg’s suit in New York.

Although the judge dismissed the Smyrna gun seller’s negligence claims against New York officials, he declared that six of 13 potentially defamatory statements were actionable and cleared the way for a tortious interference with business claim.

In addition, Forrester rejected efforts by New York’s lawyers to transfer the case to New York or dismiss it for lack of jurisdiction.

Also on Thursday, attorneys for New York City officials filed a motion for reconsideration regarding Forrester's order.

Adventure Outdoors claims that New York’s sting operation against federally licensed gun sellers along the eastern seaboard and in Ohio was a calculated and malicious effort to damage the Smyrna gun store’s reputation and destroy the business.

The sting was conceived by New York’s mayor; the mayor’s corporate counsel, Michael A. Cardozo; New York Police Chief Raymond Kelly; and the city’s criminal justice coordinator, John Feinblatt, as a prelude to a suit in New York targeting out-of-state gun sellers whose guns have illegally wound up in the hands of New York criminals.

Bloomberg, accompanied by other New York public officials, announced the results of the sting—and the accompanying suit—in May 2006 at a news conference. According to court records in the case, Bloomberg called the gun dealers “a group of bad apples who routinely ignore federal regulations,” and Feinblatt said that the targeted gun dealers had “New Yorkers’ blood on their hands.” Forrester ruled that both of those statements are vulnerable to liability claims.

As part of the New York sting, the city hired private investigators who posed as gun buyers at stores that had sold guns which were later linked to more than 800 New York crimes that took place between 1994 and 2001.

Those private investigators embarked on a series of “straw purchases.” A straw purchase is one in which a customer selects, negotiates the sale of, and pays for the gun but his or her accomplice fills out the federal forms required to complete the purchase. They are ruses to get around federal and state requirements prohibiting gun purchases by convicted felons or that limit the number of gun purchases to a single person within a specified time period.

The suit in New York invokes public nuisance statutes in seeking an injunction that would force each gun seller named as a defendant “to comply with federal, state and local laws related to the sale of guns” and bring a halt to straw sales.

Some have settled

Fourteen gun sellers, four of them in Georgia, have settled out of court with the city, a Bloomberg spokesman said this week.

The New York suit specifically accuses Adventure Outdoors of selling 21 guns that, between 1994 and 2001, were recovered from criminals in New York City or were connected to violent New York street crimes. According to the suit, those 21 guns were among a total of 254 guns sold at Adventure Outdoors during that same seven-year span which were later linked to violent crimes across the nation.

Bloomberg’s public statements boldly accusing Adventure Outdoors and the other gun stores named as defendants in the New York suit of criminal activity prompted Adventure Outdoors to turn the tables and bring in Georgia a suit against the mayor, the police chief and other members of Bloomberg’s staff.

Adventure Outdoors claims that the New York public officials defamed the business. The suit also attacked the propriety of the sting operation, claiming that the conduct of the private investigators—at the behest of New York public officials but without the knowledge of the U.S. Bureau of Alcohol, Tobacco & Firearms (which regulates gun sales)—was “akin to vigilantism and may well be in violation of federal laws as illegal conduct undertaken without authority.”

This week, Jasper attorney Edwin Marger, who is representing Adventure Outdoors, said the New York suit “was a lawsuit that really should never have been brought.” Private investigators “disregarded state law, and they may very well have disregarded federal law” in attempting to do the bidding of the New York officials who hired them, he said.

“What they did was send somebody in to violate the law,” Marger continued. “Then, after they did that, they used the kind of verbiage on our clients that was not only improper but certainly is subject to being malice per se. When you accuse somebody of a crime and say it in public … it is malice per se.”

Marger said the New York suit never mentions that Adventure Outdoors’ owners have routinely cooperated with the ATF in its efforts to track down criminals and thwart illegal gun sales. He also pointed to a Feb. 6, 2007 letter from Michael A. Battle at the U.S. Justice Department to Feinblatt in New York questioning the legality of the New York sting. In that letter, Battle said the gun buys that formed the basis of the New York civil suit “do not rise to a level that would support a criminal prosecution.”

In the same letter, Battle also warned New York officials that “there are potential legal liabilities that may attach when persons outside of law enforcement undertake actions typically reserved for law enforcement agents. This risk is particularly acute when such persons, however well-intentioned, but without proper law enforcement authority, misrepresent that they are the actual purchasers of the firearms when, in fact, the purchases are being made on behalf of another person or entity (for instance, on behalf of the City.)”

Marger noted that Adventure Outdoor’s suit names New York officials individually, rather than in their official capacity “because we felt the people responsible for making the statements were not the people of the state of New York.”

“In all due respect to Mr. Bloomberg, I think he believes that because of his great wealth and power, he can do almost anything. I think he has deeply damaged our clients. Hopefully a jury here will make a decision to determine whether we are right or he is right.”

Marger’s co-counsel in the case is former U.S. Rep. and Atlanta U.S. Attorney Bob Barr, R-Ga.

On Thursday, Bloomberg’s Atlanta counsel—Dow Lohnes partner Peter C. Canfield—referred questions to Feinblatt in New York, whose office referred questions to Bloomberg spokesman Jason Post. Post said the city “is pleased” that the judge dismissed some of Adventure Outdoors’ claims. “The city looks forward to its day in court when it will introduce facts enabling the remaining claims to be dismissed,” he said.

Statements considered

In his Sept. 21 ruling, Forrester said that the court will have to consider whether statements by public officials surrounding the New York sting were defamatory and whether the sting itself violated federal law by simulating an illegal straw purchase.

“Because the truth is a defense to such accusations, the court would have to determine whether Adventure Outdoors actually was complicit in the straw purchase,” Forrester wrote. But, the judge added, “The paucity of factual allegations present in the New York complaint would make that a difficult question to answer at this point in the litigation.”

Forrester said the court will also have to consider “whether private investigators, themselves, violated federal law….[I]t is not clear that it is legally proper under federal law for private investigators to enter gun shops to pose as straw purchasers in an attempt to induce a sale,” he wrote, referencing Battle’s February letter in a footnote.

aileron

10-05-2007, 12:25 PM

continued...

Forrester also declined to dismiss the case on grounds that Georgia has no jurisdiction in a case where New York officials who are the defendants never entered the state.

“The court disagrees with Defendants’ assertion that Plaintiffs have not sufficiently alleged a conspiracy and only provide ‘conclusory allegations’ of the non-residents’ participation,” Forrester wrote.

Instead, the judge observed wryly that “the court finds it more than a bit ironic that defendants would attempt to deny that they were involved in planning to send private investigators into various gun establishments in the state of Georgia. A significant portion of the factual support for the New York lawsuit is garnered from the results of these ‘sting’ operations. The court is fairly confident in concluding that the New York defendants are not disavowing any association with those operations in their lawsuit in the Eastern District of New York.”

Forrester also found that “the New York defendants are not being sued simply because they have executive positions in the government of the city of New York, but rather because they are alleged to be the actual persons who directed the activities of the private investigators in Georgia.”

Forrester also singled out six statements made by New York officials in announcing the New York gun litigation which the judge suggested were neither protected opinion outside the scope of libel and slander laws nor privileged reporting of judicial proceedings.

Those statements, Forrester said “are not reporting of the facts of a judicial proceeding. Other aspects of the press conference and press releases made by the New York defendants may have reported the facts of the filing of the New York complaint and its causes of action. … But the statements plaintiffs use as the basis for their defamation actions do not describe the judicial proceedings; rather they express the New York defendants’ characterization of the actions of Adventure Outdoors. Therefore, the court finds that the privilege for reporting on judicial proceedings is not applicable to the challenged statements.”

The case, in the Northern District of Georgia, is Adventure Outdoors v. Bloomberg,No. 1:06-cv-02897.

Staff Reporter R. Robin McDonald can be reached at rmcdonald@alm.com.

Smokeybehr

10-05-2007, 1:46 PM

I hope Bloomberg and his thugs get their butts handed to them on a silver platter. I also hope that the court somehow finds that what the PIs did was extra-legal, and decides to hand everything over to the US Attorney's office for criminal prosecution.